4. Petitioner argues (H.C. at 19) that his appellate counsel did not "fully brief" the fact that the evidence was allegedly insufficient to establish the "knowledge" and "falsity" elements of the perjury charge. The Court has previously found this claim to be without merit, supra at pp. 2-3.
5. Petitioner claims (H.C. at 19) that his appellate counsel failed to argue that the terms "campaign expenses," "union business expenses," and the issue of when the Petitioner "left" the law firm were sufficiently ambiguous that the Petitioner was unable to prepare an adequate defense. The issue of ambiguity was raised on more than one occasion at the trial level and soundly rejected by the Court. There is nothing about the terms "campaign expenses" or "union business expenses" or the issue of when the Petitioner "left" the law firm which were sufficiently ambiguous so that he was unable to prepare an adequate defense.
6. Petitioner argues (H.C. at 20) that his appellate counsel failed to question certain evidentiary rulings of the trial court, such as those preventing cross examination, and failed to raise and contest the ethical violations which allegedly occurred during trial. The Court cannot determine that any of the allegations made in relation to this claim could have possibly changed the outcome of the proceeding. Consequently, there is no prejudice.
7. Petitioner alleges (H.C. at 18) that his appellate counsel failed to argue that the Government constructively amended the indictment by proving reimbursement to the Petitioner for the law firm's "union business expenses," while indicting the Petitioner for receiving reimbursement for BLE's "union business expenses." This argument has previously been rejected by the Court as being without merit, supra at pp. 4-5.
8. The Court has also previously found as being without merit the claim that appellate counsel failed to argue that the Government never specified for what union office the Petitioner was alleged to have been campaigning, supra at pp. 5-6.
9. Petitioner claims (H.C. at 20) that his appellate counsel failed to do proper post-trial research, failed to make an adequate or proper post-trial investigation or analysis of the record, and failed to consult with him about various issues to be raised on appeal. None of this leads to any reasonable belief that if additional research, investigation, or consultation would have occurred, the outcome on appeal would have been different. Consequently, there is no showing of prejudice. The Court finds that appellate counsel properly followed the teachings of the Supreme Court and the Seventh Circuit in winnowing out weak issues and focusing on a few important issues.
Consequently, the failure of Petitioner's appellate attorney to raise each and every claim that the Petitioner believes should have been raised was neither professionally unreasonable nor prejudicial to the Petitioner in any manner. Therefore, neither prong of the Strickland test has been met.
E. Issues Relating to the Retroactivity of Gaudin
The really serious questions concerning this petition were not raised initially in the written pleadings but were, instead, raised during the oral argument on this matter which occurred on October 12, 1995 and later by Supplemental Motion.
On June 19, 1995, the Supreme Court decided the case of United States v. Gaudin, 132 L. Ed. 2d 444, 115 S. Ct. 2310. In Gaudin, the Supreme Court held that the element of materiality in a false statement case (18 U.S.C. § 1001) is an element of the offense which must be submitted to the jury for a decision. Prior to the Gaudin decision, every circuit in the country except for the Ninth Circuit had taken the position that materiality was a question of law to be decided by the judge. Gaudin, 115 S. Ct. at 2322.
There can be no question here that the holding in Gaudin enunciated a new proposition of law. Consequently, pursuant to Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), if the case which is the subject of the habeas were still on direct appeal at the time that the new law is announced, the new rule is to be applied to that case. Therefore, the first question to be answered is whether the direct appeal in United States v. Waldemer was still pending when the decision in Gaudin was announced.
The following is the pertinent chronology:
12/9/93 Jury verdict of guilty
5/18/94 Waldemer sentenced
3/20/95 Conviction affirmed by the Seventh
4/12/95 Seventh Circuit denies rehearing and
suggestion for rehearing en banc
5/19/95 Waldemer files petition for writ of
cert. with the Supreme Court
6/19/95 Supreme Court denies cert.
6/19/95 Supreme Court decides Gaudin
6/20/95 Waldemer files petition for rehear-
ing regarding cert. to the Supreme
6/27/95 Seventh Circuit issues its mandate
8/11/95 Supreme Court denies petition for
8/15/95 Waldemer files Motion for Habeas
The Petition for Certiorari was denied on the same day the Gaudin case was decided. However, the petition for rehearing was not denied until after the Gaudin case was decided. The Government argues that, according to Supreme Court Rule 16.3, the direct appeal was over as of the date of the denial of the petition for certiorari and that the direct appeal did not extend into the period of time when the motion for rehearing was being considered and determined. Petitioner argues that the direct appeal was not final until the petition for rehearing was denied on August 11, 1995. The Court finds that the direct appeal in this matter was not concluded until after the Gaudin case was decided on June 19, 1995. The case of Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987), is instructive on this point.
By "final" we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied. (citations omitted).
Griffith, 479 U.S. at 321, n.6 (emphasis added). See also English v. United States, 42 F.3d 473, 485, n.1 (9th Cir. 1994) (Supreme Court Rule 44.2 (providing 25 days for petitions for rehearing of a denial of certiorari)).
So, everything being equal, Gaudin would apply to this situation, and Petitioner would be entitled to a new trial. However, the Government makes the additional points that, even if the Court were to find that Gaudin is retroactively applicable to this case, the failure of the jury to be instructed on the issue of materiality was not plain error and constituted harmless error. Petitioner responds that the nature of this deficiency is such that it is not subject to the harmless error analysis. In support of that position, Petitioner cites the case of Sullivan v. Louisiana, 508 U.S. 275, 124 L. Ed. 2d 182, 113 S. Ct. 2078 (1993).
The question in the Sullivan case was "whether a constitutionally deficient reasonable doubt instruction may be harmless error." 113 S. Ct. at 2080. In Sullivan, Justice Scalia, who wrote the majority opinion, focused his analysis on whether or not the jury which had returned the guilty verdict in the case would have returned the same verdict of guilty had they been given the proper instruction regarding guilty beyond a reasonable doubt. He found that simply was not a possibility.
There being no jury verdict of guilty beyond a reasonable doubt, the question whether the same verdict of guilty beyond a reasonable doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which harmless error scrutiny can operate. The most an appellate court can conclude is that a jury would surely have found petitioner guilty beyond a reasonable doubt -- not that the jury's actual finding of guilty beyond a reasonable doubt would surely not have been different absent the constitutional error. That is not enough . . . The Sixth Amendment requires more than appellate speculation about a hypothetical jury's action, or else directed verdicts for the state would be sustainable on appeal; it requires an actual jury finding of guilty.